Has the RIAA sued 18,000 people… or 35,000?

Ars examines the extent of the recording industry's legal war on file-sharing …

Just how many file-sharers has the RIAA gone after? Those in the know were widely reporting a figure just north of 30,000 cases—the RIAA never liked to provide exact numbers—but the music trade group stated in a recent court filing that the real number of people sued is only 18,000. What's going on?

Back in 2006, an article in the Kansas City Business Journal noted that local law firm Shook Hardy & Bacon (the firm that first contacted Jammie Thomas-Rasset) would no longer be handling the RIAA's litigation campaign. The paper quoted an "RIAA spokeswoman" as saying that the group had pursued 18,000 separate defendants. (As we'll see later, this may have been a misunderstanding.)

In the years since, the campaign shifted gears and targeted college students more heavily than it had in the past; total numbers climbed well above those noted back in 2006 until the RIAA pulled the plug on the campaign last year.

Earlier this year, the Wall Street Journal interviewed EFF lawyer Fred von Lohmann about the Jammie Thomas-Rasset case, and von Lohmann noted that the RIAA had so far "targeted about 35,000 people, many of whom seemed to settle usually in the neighborhood of between $3,000-$5,000."

The litigation campaign, which has been carried out by various law firms (it currently appears to be run by Denver-based Holme Roberts & Owen), is overseen by Matt Oppenheim, a Washington, DC lawyer who used to work for the RIAA but has now started his own practice. Oppenheim provided new information about the campaign in a declaration filed in federal court last week as part of Tanya Andersen's class-action-status-seeking lawsuit against the recording industry.

In his declaration, Oppenheim provided some hard numbers on the campaign after consulting the master case management database. The record companies have contacted "over 18,000 people," 12,500 of whom were identified only by filing federal Doe lawsuits and then by serving a subpoena on an ISP. The rest were notified when their ISPs forwarded warning letters from the RIAA (no subpoena needed).

Out of the 18,000 total cases, 11,000 either settled immediately or were not prosecuted for some reason by the labels. 7,000 people held out or did not respond, and the RIAA filed named federal lawsuits against them. Once that happened, most of these people also settled; recall that Jammie Thomas-Rasset's case has been the only one to progress to an actual trial since the litigation campaign began years ago.

Not everyone went down without a fight. Oppenheim notes that "in more than 100 instances," defendants filed counterclaims against the RIAA for things like abuse of process and civil conspiracy; the vast majority of these were tossed.

Oppenheim also had some words of warning for defendants who settled their cases with the RIAA before being named in a lawsuit, but who might now be tempted to join suits like Andersen's (a similar class-action suit was announced by Jammie Thomas-Rasset's lawyer earlier this summer). It's worth quoting in full:

In cases where PNL [pre-naming letter] recipients settled before being named in individual lawsuits,
the people who settled did not receive releases of claims. The Record Companies
promised not to pursue any further action against setting persons, and kept those
promises. In the event that a settling person were to assert a claim against the Record
Companies, however—either themselves or derivatively, such as through the class action Andersen seeks to pursue on their behalf—the Record Companies would
likely defend the action by demonstrating that these claimants infringed, and thus cannot
claim "abuse of process" or any of the other torts Ms. Andersen asserts. Upon
demonstrating this infringement in court, the Record Companies would have the legal
right to damages far in excess of prior settlement payments. Indeed, in the overwhelming
number of instances, the settlement amounts were only a fraction of the minimum
statutory damages that would have been due had the case actually been litigated.

In other words, don't join the lawsuit or you could end up on the hook for far more money.

A matter of perspective

So how to explain the discrepancy in the numbers? Has the RIAA contacted 18,000 people or 35,000?

The answer, according to an RIAA spokeswoman, is that both numbers are true in their own way. The 18,000 figure is the number of unique individuals contacted during the course of the campaign, but of course many of these individuals were sued twice—first as Does, and later as named defendants once their identities had been revealed by the ISP. "We have filed more than 30,000 suits," the RIAA tells Ars, "which include both named and Doe suits."